The Immanent Frame

Winnifred Fallers Sullivan

Winnifred Fallers Sullivan is professor and chair of the Department of Religious Studies and affiliate professor of law at Indiana University Bloomington. She is one of the co-organizers of a Luce Foundation funded project on politics of religious freedom, and guest editor (with Elizabeth Shakman Hurd) of an extensive TIF discussion series on the same topic. Sullivan is the author of The Impossibility of Religious Freedom (Princeton, 2005), and A Ministry of Presence: Chaplaincy, Spiritual Care and the Law (Chicago, 2014); and editor, with Robert A. Yelle and Mateo Taussig-Rubbo, of After Secular Law (Stanford 2011); with Lori Beaman, of Varieties of Religious Establishment; and, with Elizabeth Shakman Hurd, Saba Mahmood, and Peter Danchin, of Politics of Religious Freedom (forthcoming from Chicago, 2015).

Posts by Winnifred Fallers Sullivan:

In the last week the US Supreme Court has acted in two religious freedom cases (Burwell v. Hobby Lobby and Wheaton College v. Burwell) in favor of conservative Christian plaintiffs seeking exemptions from the contraceptive coverage mandate of the Affordable Care Act. Liberals have gone nuts, wildly predicting the end of the world as we know it. While I share their distress about the effects of these decisions on women, I want to talk about religion. I believe that it is time for some serious self-reflection on the part of liberals. To the extent that these decisions are about religion (and there are certainly other reasons to criticize the reasoning in these opinions), they reveal the rotten core at the heart of all religious freedom laws. The positions of both liberals and conservatives are affected by this rottenness but I speak here to liberals.

While greatly admiring the other pieces in this series and the humanist sensibility and critique that pervades them, I will suggest in this essay that it is, in part, the very dichotomy between the legal and the religious, what I will call separationist thinking, that hobbles our capacity to think clearly about what happened and why. I will suggest that there are not, on the one hand, “specifically religious grounds” apart from the legal or, on the other, “primarily legal” ones apart from the religious. The two are deeply implicated, one in the other. The sex abuse crisis is, in some sense, also a church-state crisis.

There is much that could be said about the history of the Catholic Church and its dedication to the defense of religious freedom. What interests me about the formation of a new Ad Hoc Committee on religious freedom at this time is the company that the bishops are keeping today—and why the bishops’ bellicose language accusing the Obama administration of mounting a war on religious liberty seems to make sense to such a disparate and varied group. Beyond the obvious self-interest, there is a genuine urgency to the bishops’ appeal, one that is legible to a surprising number of Americans.

The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming for the first time the constitutional status of the ministerial exception, the Chief Justice declares that “(t)he church must be free to choose those who will guide it on its way.” Not “persons” must be free to choose their own ministers, but “the church” must be free. What is “the church?”

Last week, in the first week of its October 2011 term, the U.S. Supreme Court heard argument in a suit brought by the Equal Employment Opportunity Commission charging the local branch of the Missouri Synod Lutheran Church with illegal retaliatory firing of a Michigan parochial schoolteacher under the 1990 Americans with Disabilities Act. The ADA mandates an end to discrimination against persons with disabilities across a wide range of contexts and is considered a high-water mark of American civil rights legislation. The Church, supported by a wide array of other interested religious organizations, claims immunity from such legislation.

If there is one fixed star in American understandings of religion it is that government should not be in charge of picking religious leaders. Religion should be self-governing and religious leaders should be chosen by their flocks. Any other arrangement would not be free.

On Wednesday, April 28, 2010, the U.S. Supreme Court handed down its decision in Salazar v. Buono, its latest effort to specify what the establishment clause of the First Amendment to the U.S. Constitution requires of the government with respect to religious objects on public lands.

The object of its concern on this occasion is an eight foot white cross standing on a rock outcropping on a federal preserve in the Mojave Desert, first placed there in 1934 by the Death Valley post of the VFW, and denominated a national WWI memorial by Congress in 2002. The legal issue before the Court was whether the Ninth Circuit Court of Appeals had properly affirmed a District Court ruling that the 2004 congressional act transferring the acre of land containing the cross to the VFW was illegal. . . .

The six opinions presented in Salazar v. Buono display various views on how the law of injunctions should be applied to the facts. All agree, however, that the District Court’s original decision—finding display of the cross on federal land to be an unconstitutional establishment of religion—is res judicata (that is, “the thing is decided,” and is no longer reviewable). Along the way, however—partly perhaps because, as some of them said, the law of injunctions is not very interesting to them—many of the justices, both at oral argument and in their written opinions, couldn’t resist offering opinions on the public meaning of the cross.

There is an embarrassing giddiness in the religious studies world today. With our new mantra in hand—the new “salience” of religion—we, both scholars of religion and other self-appointed spokespersons for religion, feel licensed to instruct the world on the importance of religion. We are suddenly relevant again. Or so we think.

If there is an opportunity for religious studies today, and my own view is increasingly that this is an opportunity more for listening than for speaking, the Chicago Report suggests the likelihood that this opportunity will be misunderstood and misused. Religion today is an immensely complex phenomenon. And there are many who speak in its name. It is far from clear that there is any sense in which generalizing about religion is useful as a political matter—or, for that matter, that the United States government should be spearheading a new reformation.

What does the academic study of religion have to contribute to public discussions concerning Major Hasan’s religious identity? What do we know about religion and religious identity? We are worried about stereotypes and we are anxious, but what do we know?

The Bush administration has widely been assumed to have significantly favored evangelical Christian perspectives and organizations in its policies. A corollary of that assumption has been that regime change would return us to our natural secular condition. Preliminary evidence suggests that the first is indeed the case (although the changes had been initiated during the Clinton administration) and that the second is unlikely. […]

What exactly was wrong with the Yearning for Zion ranch—home to a group identified with the Fundamentalist Church of Jesus Christ of Latter Day Saints—as a place to raise children? It is plain that with respect to any child for whom there is reason to believe that there is ongoing sex abuse—and the state did receive a phone complaint from a girl complaining of abuse—the state of Texas has a pretext—even a duty—to intervene. Texas authorities say they were worried about the “culture” at the ranch. The Supreme Court of Texas, in its May 29 decision ordering the return of the children, said that the state was concerned that the ranch had “a culture of polygamy and of directing girls younger than eighteen to enter spiritual unions with older men and have children.” What is a “culture of polygamy”? Is it separate from or the same as the rest of the culture of the Yearning for Zion ranch? How are they related to what Texas authorities called “mainstream culture”?

It would have been enough for Lilla to frame this book as an explanation of the genealogy of bourgeois protestant German Christian liberal political theology and the long shadow that it casts over the post-enlightenment world order. To see that theology as inevitable and as uniquely significant as a diagnostic for comparative political theology undercuts the very conversation Lilla begins with, one that is well worth having—a serious comparative study of political theologies, one that acknowledges that separation is also a political theology.

“Favoritism for religion,” says Justice Souter, “‘sends the . . . message to . . . nonadherents’ that they are outsiders, not full members of the political community.” Souter’s is increasingly a minority voice. We are all religious now. As a leading architect of integrating spirituality into medicine says, “our belief [is] that there is a spiritual dimension in every person’s life, even in those who deny that there is.” […]

There is a sense among those who are watching that the ground is shifting in U.S. constitutional jurisprudence with respect to religion, particularly with respect to what is known as the “establishment clause.” Disestablishment is coming to mean less privatized pluralism through the separation of religion from public life and more a religiously pluralistic and inclusive public accommodation of religion, religion-in-general. Government funding and endorsement of religion, heretofore regarded as taboo, are becoming constitutionally plausible. […]